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Philosophy

Cure or Poison? The binding precedents in the Brazilian legal system.

This article aims to assess the succinct manner the profound changes in the Brazilian legal culture caused by the introduction of binding precedents (stare decisis) in the Brazilian legal system.

Initially, it should be said that this work is also a relief, a lawyer who cares to study the legal system of a country is faced with a series of absurdities resulting from innovations that are not good either for law enforcement professionals nor for the people whom we serve.

The Brazilian legal system follows the Roman – Germanic tradition, different systems American or English, which follow the so-called common law. The main difference between these types of law is that the Brazilian system (traditionally followed by other Latin American countries, continental Europe and the U.S. state of Louisiana), there is prevalence of law prior written and generally, where there are very important collections laws, such as codes (Codex). But the English system has repeated decisions in similar cases tried in courts, called precedents, the main source of law. There are laws in countries in the system of common law, previous decisions as there are in Brazil (called case law), but it is important to set what is the main source where lawyers will seek out material to interpret the law properly.

Within the English system, is common and routinely called stare decisis, which in a simple explanation, means that a court is obliged to judge the way a certain type of court case, and oblige all judges are subordinate to it , to judge the same way. This way of working is acceptable in a system where the previous judicial decisions are the main sources of law, and where there are many laws that take care of many different cases.

However, that principle has not been unique in English-speaking countries and Anglo-Saxon culture, and has become more common in other countries, especially Brazil.

The Supreme Court of Brazil, called “Supremo Tribunal Federal” (STF), has adopted a kind of standard very similar to stare decisis, authorized by a recent amendment in the Constitution occurred in 2005, called “súmula vinculante” (which translates as just stare decisis) in which the court after judge like cases, publish a regulation that requires all judges and public administrators in the country to interpret a particular provision in a single direction, under penalty of accountability or at least the decision be overturned by the court. Under the eye of a reader of English origin, such a rule would not be wrong (in contrast, is totally correct). However, within the Brazilian legal culture, this decision hurts all the legal and the institutions they seek to defend the law is correctly applied.

Brazil, as noted, is a country where the law takes precedence. This can be measured both in the history of the country and in the set of laws, and only at the federal level there are almost twenty thousand laws, not counting state and local laws. The use of law in Brazil as a source of law is also necessary for reasons of legitimacy. In Brazil, as in other democratic countries, senior public administrators and legislators are directly elected by the people, and even many politicians are not the most qualified people to draw up laws, they are in the legislative houses for universal suffrage. Since the judges, unlike in Brazil are not elected. To become judges, law graduates provide a public trial, if approved and follow a career in their respective courts, with few exceptions, which did not pass by a vote of the people. In countries of English origin, by contrast, it is common for judges are elected in their localities, and in some other situations, members of high courts may be removed by the rulers – who are elected by the people.

The constitution of Brazil, by allowing judges to issue binding precedents of the Supreme Court created a solution – greater agility trials, as is common in Brazil repetitive legal cases, where thousands of claims are identical. However, it created a bigger problem than the solution, which was to diminish the independence of judges in the law. In the Brazilian system has always been present the principle of free conviction motivated judges, so that the judge was always bound to the law – created by the legitimate representatives of the people – and your conscience, which interprets the law before the case. Currently, with the binding precedent, the judges have their autonomy limited not by law but by the understanding of other judges, appearing in Brazil’s attempt to create real “judges Hercules” as saying the American jurist Ronald Dworkin, but in fact authorized the dictatorship of the robe, where judges without the approval ratings are saying in general and unrestricted what is right and wrong.

This option by linking all the previous legal decisions of the supreme court is exclusively the Brazilian certainly decrease of cases to be judged by the Brazilian courts. It is known that the active judges in Brazil are not sufficient to support all of the trials efficiently. However, rather than decrease the number of cases on the subject of judicial independence and sovereignty in legislative matters of legitimate elected representatives of the people – essential in a democratic country – other solutions could be found, such as increasing the number of judges and closer relations between the people and the judgments, as with the creation of judges responsible for smaller communities – as a specific number of judges for each district, even if the increase in the number of judges actually cause an unwanted by all members of the courts – reducing the salaries of judges, who earn on average $ 20,000.00 ($ 10,000.00) per month!

In Brazil, there is a popular saying that “the difference between medicine and poison is the amount to be applied to the patient”. In this case, the search for a cure (faster trials and decrease the work load) is killing judicial independence and the Brazilian legal system.